There are many unresolved legal questions to consider when it comes to COVID vaccination employee policies.  Labor lawyer Tawny Alvarez of Verrill and MP’s HR consulting team have compiled key advice for reducing legal risk when it comes to COVID vaccination. Here are four major areas of legal concern, as well as some of the best HR strategies to reduce legal risk.   

1. COVID Vaccination Pre-Screening Questions: Employers who are facilitating on-site vaccination must consider privacy implications.  Vaccine pre-screening questions can potentially create issues staying ADA compliant (the Americans with Disability Act).  This is because they may elicit disability-related information.  Some state-law disability anti-discrimination laws may provide employees with similar protections.  Employers can limit risk that is created through pre-screening questions by using a public provider (like a pharmacy) or a third party to handle the vaccination process.     

2. Continued Social Distancing and Hygiene Protocols Post COVID Vaccination:  Employers are required by OSHA to provide a safe working environment for employees.  Because so much remains unknown about COVID transmission by vaccinated workers, social distancing, masking, and COVID-related hygiene protocols must be continued.  Employers should continue to monitor OSHA and CDC guidance, as it is ever-changing.  As of this writing, current advice indicates that quarantine requirements will be reduced if the worker who has been exposed (or potentially been exposed) to COVID was vaccinated.

3. Incentives and COVID Vaccination:  Providing incentives to employees who receive a COVID vaccination could open a legal can of worms.  If some staff cannot get the vaccine because of legal reasons or because they have a disability (especially one covered under the ADA) that prevents them from getting vaccinated, the incentive itself could be viewed as discriminatory. An incentive could also expose an employer to liability under state or federal anti-bias law.  Additionally, incentives may be perceived as unlawfully coercive, can create wage and hour concerns, and, depending on vaccination availability, could create arguments in support of discrimination claims.   

4. Personal Health Information and COVID Vaccination: Employers should not treat vaccinated and unvaccinated workers differently. Though employers might be tempted to create teams or shifts of vaccinated workers to handle certain tasks, doing so could create the risk of discrimination claims or arguments that personal health information has been shared.  Employers must treat a worker’s vaccination status as private medical information.  They should not share it, nor should they mark their workers with “vaccinated” badges or buttons.     

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